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August 19, 1983


The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 In this case we are considering today a motion for a new trial in which two particular grounds have been argued, one in argument, and both in brief.

 The first of the two claims is that it was error for this court to decline to order a mistrial when requested to do so after the admission into evidence of the guilty plea of alleged co-conspirator Tyahla. No contemporaneous objection to admission of the guilty plea was taken.

 The second ground of the motion for a new trial covered in brief, but not at oral argument today, was that government counsel argued improperly to the jury in closing through several uses of the phrase, "I submit," or, "I submit to you", phrasings which in defendant Calafati's view were the equivalent of personal endorsements by government counsel of the line of testimony and inferences to be drawn therefrom to which government counsel was addressing their attention, such endorsements being prohibited.

 There are other claims made by Mr. Calafati which have not been addressed specifically today which go to other aspects of the long and complex trial. I won't canvass those this morning. Suffice it to say, it was a trial that presented a variety of difficulties as it went forward, and those difficulties persisted until the closing arguments.

 I found it necessary to intervene twice to inform the jury that I did not concur in government counsel's recollection as expressed in closing argument of the testimony.

 What I want to focus on this morning, however, are the claims which have been addressed this morning in argument and brief. The focus of the argument has been on the claim first referred to, namely, that it was error of an irretrievable nature to have sanctioned the admission into evidence at the outset of the direct examination of Mr. Tyahla of Mr. Tyahla's plea of guilty to Count 1 of the indictment, the conspiracy count.

 I say that the crux of the argument is that this was an irretrievable error for we have a situation in which, as I've already noted, no contemporaneous objection was made to the inquiry to Mr. Tyahla about his guilty plea which came at the outset of Mr. Tyahla's testimony, and it is also the case that the following day I advised the jury that they were not to consider the guilty plea as itself evidentiary of guilt of the defendants, including Mr. Calafati, who were on trial.

 During the charge to the jury, which came at the close of a trial of considerable length, I advised the jury once again that Mr. Tyahla's plea of guilty was not in itself evidentiary of guilt on the part of the defendants whose cases were before the jury.

 So the question is two-fold. The first part of the question is whether the guilty plea should have been admitted for any purpose; the second part of the question is whether if the guilty plea was admitted for any purpose, or for no purpose, the cautionary instructions given by the court, both in the course of trial and as part of the charge, were sufficient to preclude the jury fastening on Mr. Tyahla's guilty plea as in some way evidentiary of the guilt of Mr. Calafati and/or his co-defendants, one of whom was convicted and one of whom was acquitted.

 The proposition that Mr. Tyahla's plea of guilty to a conspiracy should not have come into this case at all rests principally on the Third Circuit's advise in United States v. Gullo, 502 F.2d 759, 761 (3d Cir.1974), to the effect that the general rule in this circuit that while the evidence of a guilty plea by a co-conspirator is not admissible, citing United States v. Toner, 173 F.2d 140 (3d Cir.1949), under some circumstances curative instructions are adequate to remove the harm where the pleas are to substantive counts.

 The government's position, namely, that there are instances in which a guilty plea to a conspiracy charge is admissible for purposes other than that of substantive evidence of guilt on the part of the alleged co-conspirators, rests on the Toner case itself cited by the court of appeals in Gullo, and on the court of appeals opinion in Bisaccia v. Attorney General, 623 F.2d 307 (3d Cir. 1980) cert. denied, 449 U.S. 1042, 101 S. Ct. 622, 66 L. Ed. 2d 504 (1980).

 In Toner, 173 F.2d at 142, Judge Goodrich, on behalf of the court of appeals, concluded that the Judge's curative instruction with respect to the proper use of a guilty plea was insufficient, and hence, the conviction was reversed. That determination certainly carries with it the ...

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